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Tuesday, April 24, 2018

Naruto, the Article III monkey

Posted by
Michael Risch

The Ninth Circuit released its opinion in the "monkey selfie" case, reasonably ruling that Naruto the monkey doesn't have standing under the Copyright laws. The opinion dodges the hard questions about who can be an author (thus leaving for another day questions about artificial intelligence, for example) by instead focusing on mundane things like the ability to have heirs. As a result, it's not the strongest opinion, but one that's hard to take issue with.

But I'd like to focus on an issue that's received much less attention in the press and among my colleagues. The court ruled that Naruto has Article III standing because there is a case or controversy. I'll admit that I hadn't thought about this angle, having instead gone right to the copyright authorship question (when you're a hammer, everything looks like a nail). But I guess when you're an appellate court, that whole "jurisdiction and standing section" means something even though we often skim that in our non-civ pro/con law/fed courts classes in law school.

I'll first note that the court is doubtful that PETA has standing as "next friend." Footnote 3 is a scathing indictment of its actions in this case, essentially arguing that PETA leveraged the case for its own political ends rather than for any benefit of Naruto. Youch! More on this aspect here. The court also finds that the copyright statute does not allow for next friend standing, a completely non-shocking result given precedent.

Even so, the court looks to whether Naruto has individual standing even without some sort of guardian. Surprisingly enough, this was not an issue of first impression. The Ninth Circuit had already ruled that a group of whales had Article III standing. From this, the court very quickly decides that Naruto has standing: the allegation of ownership in the photograph easily creates a case or controversy.

Once again, the best part is in the footnotes. I'll reproduce part of note 5 here:

In our view, the question of standing was explicitly decided in
Cetacean. Although, as we explain later, we believe Cetacean was
wrongly decided, we are bound by it. Short of an intervening decision
from the Supreme Court or from an en banc panel of this court, [] we cannot escape the
proposition that animals have Article III standing to sue....

[The concurrence] insightfully identifies a series of issues raised by
the prospect of allowing animals to sue. For example, if animals may sue,
who may represent their interests? If animals have property rights, do they
also have corresponding duties? How do we prevent people (or
organizations, like PETA) from using animals to advance their human
agendas? In reflecting on these questions, Judge Smith [in the concurrence] reaches the
reasonable conclusion that animals should not be permitted to sue in
human courts. As a pure policy matter, we agree. But we are not a
legislature, and this court’s decision in Cetacean limits our options. What
we can do is urge this court to reexamine Cetacean. See infra note 6.
What we cannot do is pretend Cetacean does not exist, or that it states
something other, or milder, or more ambiguous on whether cetaceans have
Article III standing.

I was glad to see this, because when I read the initial account that Article III standing had been granted, I wondered why the court would come to that decision and thought of many of these questions (and more - like what if there's no statute to deny standing, like diversity tort liability).

I'll end with perhaps my favorite part of the opinion: the award of attorneys' fees. The award itself is not surprising, but the commentary is. It notes that the court does not know how or whether the settlement in the case dealt with the possibility of such an award, but also that Naruto was not part of such a settlement. It's unclear what this means. Can Slater collect from Naruto? How would that happen? Can Slater collect from PETA because Naruto was not part of the settlement? The court, I'm sure, would say to blame any complexity on the whale case.